In the dying days of his government, Stephen Harper went to considerable lengths to ensure that the National Energy Board panel tasked with vetting the controversial Energy East pipeline be made up of commissioners hand-picked by the Conservatives – regardless of the election outcome.

In the months prior to the election call, Harper reappointed to various boards and agencies dozens of people whose terms were not due to expire until after the federal election.

In the case of the NEB, Harper handed Justin Trudeau a full roster. The Liberals will not have a vacancy to fill among the temporary members of the board until 2018 – by which time it will have reported on all major pipeline projects currently in the works. The next permanent vacancy will not come up until after the next federal election.

Two of the three members of the Energy East panel that, as of this week, has been conducting hearings into TransCanada’s plan to link Alberta’s oilfields to the Atlantic Coast were among Harper’s posthumous appointments.

In the normal scheme of events, Jacques Gauthier and Lyne Mercier would have been up for replacement in December 2015 – almost a full month after the swearing-in of Trudeau’s government. Instead, both had their terms preventively renewed over the final weeks and months of the last Conservative Parliament.

It is a rare person who gets appointed to a public post by a prime minister not once or twice but three times over less than a decade.

Gauthier is such a rarity.

Remember the 2010 Vancouver Olympic Winter Games and the viral controversy that erupted in the face of a distinct deficit of French at the opening ceremony? Gauthier happened to head the advisory council responsible for insuring that the Games reflected Canada’s linguistic duality.

Notwithstanding that public-relations fiasco, he also served on the prime minister’s advisory committee on the public service prior to being appointed and reappointed to the NEB.

After IPolitics uncovered Harper’s deathbed patronage spree, the incoming Liberal government did write to 33 Conservative appointees to ask them to voluntarily relinquish their functions.

But perhaps for fear of undermining the credibility of the Energy East panel even before it had begun its public hearings, or to deflect accusations that it was interfering with an independent tribunal, it did not – at least in writing – put Gauthier and Mercier on notice.

By the time Trudeau took office, the two had already stretched the notion of the arm’s-length relationship that is expected to preside over the dealings between an NEB panel and the proponents and opponents of a given project.

In the months prior to their reappointments by Harper in early 2015, the two participated in a series of private meetings with various Quebec constituencies – mostly but not exclusively from the pro-pipeline corporate sector. One of those they met was former Quebec premier Jean Charest. He was then a consultant for TransCanada.

When National Observer broke the story last month, the NEB insisted Energy East was not on the agenda.

But last week, the agency retracted itself. Notes from the meetings show the pipeline was indeed up for discussion, as were various strategies to advance the file.

Gauthier, who initiated the meeting with Charest, specifically wrote in an email obtained by National Observer that he wanted to talk about the TransCanada project.

On Tuesday, Environment Minister Catherine McKenna declined to comment on the panel’s behind-
closed-doors dealings with parties that have a direct or indirect interest in the outcome of its review of Energy East, or their potential impact on the NEB’s credibility as an independent agency.

But ignoring the elephant in the room will not make it go away.

Since he has become prime minister, Trudeau has reiterated his government’s determination to restore public confidence in the pipeline approval process.

With NEB reform out of their reach for the foreseeable future, the Liberals have committed to hold separate additional consultations focused on the environment and the rights of indigenous people prior to the cabinet coming to a final decision on a project.

But the NEB, whose official task it is to determine if a pipeline is in the national interest and recommend accordingly a way forward to the government, remains a cornerstone of the process – and it is hard to build on sand.

Chantal Hébert is a national affairs writer. Her column appears Tuesday, Thursday, and Saturday.

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